<nettime> CYBER-FEDERALIST NO.14: Creating the Illusion of Legitimacy

[t byfield <tbyfield@panix.com>]

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Date: Thu, 08 Aug 2002 00:36:50 -0400
From: "Hans Klein" <hans.klein@pubpolicy.gatech.edu>
Subject: CYBER-FEDERALIST NO.14: Creating the Illusion of Legitimacy

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     CYBER-FEDERALIST No. 14         8 August 2002

              Creating the Illusion of Legitimacy

       Civil Society Democracy Project (CivSoc)
 Computer Professionals for Social Responsibility (CPSR)
                    http://www.civsoc.org

                 The Internet Democracy Project
            http://www.internetdemocracyproject.org/
 ******************************************************************

After four years of existence ICANN is widely recognized as a top-down 
policy-making body with only a weak basis in legitimacy.  The Markle 
Foundation expressed the consensus of the Internet community when it said, 
"ICANN, as it has developed, is seriously flawed as a global institution 
able to make decisions worthy of deference or to safeguard the public 
interest...'" [1]

This legitimacy deficit is certainly not from any failure to go through the 
motions.  In its words and its actions, ICANN seems to employ 
participative, consensus-based, bottom-up procedures.  The problem is that 
these words and actions often serve only to create an illusion of 
legitimacy.  The reality is much different.

The simulation of legitimacy is most frequently observed in matters 
pertaining to the At Large Membership.  Today these activities are centered 
in the At Large Organizing Committee (ALOC).  After the Board eliminated 
user elections this spring, ICANN's former Chair launched the ALOC to 
"guide and encourage bottom-up efforts ... for meaningful, informed 
participation ... by a full range of Internet users." [2]  In fact, close 
observation shows that user input and participation is tightly controlled.

In this issue of the Cyber-Federalist I examine the tactics by which ICANN 
and the ALOC create the illusion of legitimacy.  The three tactics used 
most frequently are: Newspeak, exclusionary committees, and participant 
learning curves.

Newspeak
========
A considerable portion of ICANN's budget goes to public relations.  Through 
its spokespeople, press releases, and interviews, ICANN presents issues in 
the most favorable light possible.  Sometimes, however, ICANN's 
announcements seem contradictory to the facts.

Orwell's most famous Newspeak phrase was, "War is peace";  for ICANN the 
equivalent might be "Disenfranchisement is participation."  In Accra the 
Board rejected its own At Large Study Committee's (ALSC) recommendations to 
hold elections and instead decided to modify its bylaws to eliminate user 
representation from the board. The ALSC's Charles Costello of the Carter 
Center judged that act in no uncertain terms:
*  "The management proposal ... is a declared intent of a palace coup 
d'etat from within ICANN."
* "[It] is a breach of faith with the founding principles and basic 
structure of ICANN..." [3]

ICANN's official pronouncements painted a decidedly different picture.  In 
a board resolution and a subsequent press release, the elimination of 
voting rights was described as an effort to promote participation:
* "ICANN Board approves individual Internet user participation"
*  "[The Board] wishes to move forward with energy and enthusiasm to build 
a meaningful structure for informed participation by the full range of 
Internet users" [4]

Even as it eliminated a basic mechanism of accountability -- the election 
of directors, as guaranteed in its founding by-laws -- ICANN used public 
relations techniques to convince the public that it was committed to a 
meaningful role for users.  Actions and words diverged.

The web site for the At Large Organizing Committee (ALOC) is another 
example of Newspeak.  The site claims that the ALOC's work will be public 
and will be facilitated by a paid staff person.  Yet the reality is 
different.  Since its launch the ALOC has operated on a private list with 
no known archives.  The ALOC's staff "facilitator" actually writes the 
material, and committee members are invited to comment on 
it.  Contributions judged inappropriate by the "facilitator" have been 
summarily rejected -- even when they have received support in the 
committee.  When this behavior was challenged by ALOC members, the 
facilitator announced the creation of a closed sub-committee from which the 
more outspoken members were excluded (more on this below.)  Language and 
reality diverged.  While top-down, closed processes are not per se wrong, 
it is inaccurate to describe such a process as public and 
participative.  Such a description exaggerates the legitimacy of a closed 
policy process.

Committees
=========
Another tool to create the illusion of public input is committees -- and 
sub-committees, and sub-sub-committees.  Consistent with its mandate to 
employ consensual processes, ICANN often creates committee to address 
policy questions.  However, should such a committee propose ideas 
inconsistent with what is desired, it is not uncommon that a new committee 
be formed.  Should that committee also give the "wrong" answer, yet another 
committee may be formed.  And so on.  At each step, the composition of the 
latest committee may be refined.  By excluding more vocal or 
better-informed members, ICANN may eventually achieve a committee whose 
opinion corresponds to what is desired.  This can then be accepted as 
"public input."

Thus when reformist directors were elected to the ICANN Board, the Board's 
business migrated to an Executive Sub-committee.  Reform-minded directors 
were excluded.  Or when the DNSO Review Working Group came up with the 
"wrong" ideas, the recommendations of another group -- the DNSO Review 
"Task Force" -- were used.  In both cases the illusion of participation was 
maintained, but dissenting ideas were filtered out by the creation of new 
committees.

The At Large Membership process has also seen a succession of 
committees.  Self-organizing user groups like the NGO and Academic ICANN 
Study (NAIS) and the Interim Coordinating Committee (ICC) [5] were 
uncompromising in their commitment to user elections.  Predictably, their 
recommendations were not adopted.  Then the ICANN Board appointed its own 
committee to consider the issues: the At Large Study Committee 
(ALSC).  However, after the ALSC also supported user elections, the Board 
rejected its recommendations, too.  The Board finally decided to 
unilaterally eliminate elections.

Today's ALOC manifests similar tactics.  When ALOC members, including this 
author, included in a collective document language supporting user 
elections, the ALOC "facilitator" vetoed the material.  In short order a 
new sub-committee was created, from which outspoken members were 
excluded.  The ALOC's substantive work then shifted to this restricted 
group.  Whether this sub-committee with its reduced membership will give 
the desired results remains to be seen.

This use of committee-formation to filter out dissent is a second tactic to 
create the illusion of legitimacy.  By ignoring committees that give the 
"wrong" results and by creating new committees or sub-committees as needed, 
ICANN creates the illusion of participatory processes.

Participant Learning Curves
======================
When newcomers join ICANN processes, they can generally be counted on not 
to publicly dissent for about six months.  That is the time needed for 
someone to understand complex policy questions and to evaluate the 
credibility of other participants.  During this period newcomers' passive 
acquiescence and institutional affiliations can shore up ICANN's legitimacy.

Imagine the situation of a newcomer new to ICANN and low on the learning 
curve.  On the one hand, he/she hears the strong language used by people 
like Congressman Markey (ICANN is a "failure,") the Carter Center's 
Costello ("a palace coup,") or law professor Michael Froomkin ("ICANN plays 
dirty -- it lies.") [6].  On the other hand, the newcomer hears ICANN 
proclaim its commitment to open processes and sees ICANN accepting input 
from committees -- seemingly clear proof of its open and participative 
nature.  As a result, most newcomers cautiously participate in ICANN 
processes and may support policies proposed from the top.  They give ICANN 
the benefit of the doubt.

Perhaps this explains the vehemence that comes later.  Committee work 
representing many people-months' labor may be summarily rejected or 
ignored. Decisions once made may be reopened and passed to a new 
committee.  Such has been the experience of members of the ALSC and the 
ALOC.  After a few such experiences, the newcomer often joins the chorus of 
critics or leaves in disgust.  By then, however, another batch of newcomers 
may be invited to participate, and the process begins again.

Exploiting the learning curves of successive waves of participants has been 
an important tactic for the piecewise advancement of top-down decisions.

You Can't Fool All of the People All of the Time
====================================
Newspeak, committees, learning curves -- these and a host of other tactics 
have been the stuff of the ICANN policy process.  While such dissimulation 
used to cause outrage, it is increasingly a source of wry amusement. As US 
Congressman Ed Markey said, "Although ICANN is supposed to be a 
consensus-based organization, the irony is that the only thing it has 
achieved global consensus on is that it is a failure." [7]

Over time the tactics of illusion wear thin.  Today, ICANN is widely 
recognized for what it is: a top-down policy-making institution that 
regulates important areas of the Internet.  It is not particularly 
transparent, accountable, or representative.  The people who run ICANN may 
honestly believe that this is how it should be; that is not the issue 
here.  The issue is that ICANN attempts to make its processes look 
different than what they are.  Expressions of concern about "participation 
by the full range of Internet users" are inconsistent with a demonstrated 
commitment to top-down decision-making.

In particular, the ALOC (or its new sub-committee) is emerging as the 
latest attempt to create the illusion of legitimacy.  With its staff 
vetoing language deemed unacceptable, the ALOC seems likely to produce a 
result acceptable to the ICANN board.  At that point ICANN's board may 
announce that it has finally discovered the true voice of the user.

###

References
=========
[1] Markle Foundation, "A Pluralistic View of DNS Governance: Core 
Principles for ICANN Reform," Statement for the Record to the Senate 
Committee on Commerce, Science, and Transportation, Subcommittee on 
Science, Technology, and Space, Hearing on ICANN (June 12, 
2002)  http://radio.weblogs.com/0108486/misc/icannstatementfinal-markle.doc
[2] From the ALOC home page.  (The language is quoted from an ICANN Board 
resolution.  See note 4, below.)  http://www.at-large.org/
[3] Charles Costello, ICANN Public Forum in Accra, Real-time Captioning, 13 
March 2002.  http://www.icann.org/accra/captioning-afternoon-13mar02.htm 
(To find the quote in this lengthy document, search on "palace coup.")
[4] ICANN Board Resolution, 14 March 2002, "ALSC Report and At 
Large."  http://www.icann.org/minutes/prelim-report-14mar02.htm
[5]  NAIS: http://www.naisproject.org/ ICC: http://www.icannmembers.org/
[6] Froomkin, Michael, presentation at "The Public Voice in Internet Policy 
Making," 22 June 2002, sponsored by the Electronic Privacy Information 
Center (EPIC).  http://www.thepublicvoice.org/events/dc02/ .  For Markey 
quote, see note 7.  For Costello quote, see note 3.
[7] Markey, Edward, (US Congressman), quoted in the Washington Post and 
Access Global Knowledge, 20 June 2002. 
http://access.globalknowledge.com/Article.asp?ID=3904


=========================================================

CYBER-FEDERALIST is a series of analyses and commentaries
on Internet governance and ICANN produced by the
Civil Society Democracy Project (CivSoc) of
Computer Professionals for Social Responsibility (CPSR).
See:
    http://www.cyber-federalist.org (archive)
    http://www.civsoc.org
    http://www.cpsr.org

The author of the CYBER-FEDERALIST is Hans Klein.

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